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Kim Barnes was an unhappy employee as a result of the reclassification of her position and policy changes by LaPorte County, her employer. She voiced her unhappiness and intent on transfering to another department. She also began missing work more frequently. At the end of a two-week vacation Barnes faxed in a note from her doctor excusing her from work for an additional two weeks. As requested, Barnes submitted a completed WH-380 in support of her leave request due to stress and insomnia. Suspecting fraud, the County sent Barnes a letter notifying her that she needed to obtain a second medical opinion and that a doctor's appointment had been scheduled on her behalf. Barnes did not attend the scheduled appointment because she felt it was unjustified. Instead, she submitted another note from a nurse requesting additional leave. The County terminated Barnes for "continued absence from work." Barnes sued alleging violation of the FMLA. The County moved for summary judgment.

Barnes argued that the County did not have the right to require her to submit to a second health care opinion to verify her request for FMLA leave. The second health care opinion provider process, Barnes argued, was limited to verifying the inital certification and not to secure additional medical information. The court disagreed.

The court found that, under the facts, the County had an honest suspicion that Barnes' application for FMLA leave was not legitimate to justify its request for additional certification by an independent medical examiner. The County noted the frequency and timing of Barnes' absences; Barnes' known frustration regarding the policy changes; Barnes' repeated statements to her supervisor of her intention to leave her position; Barnes' efforts to clean out her desk prior to taking an extended leave of absence; the fact that the initial certification was the result of a telephone consultation; and the curious timing of her vague leave requests, being faxed on the last day of Barnes' vacation.

The court went on to find that Barnes forfeited her FMLA protections by failing to attend the second opinion appointment to certify her leave.

Comment: The FMLA allows an employer who has reason to doubtt the validity of a medical certification initially provided by the employee to obtain a second opinion at the employer's expense. The circumstances where an employee may have a reason to doubt the validityof the initial medical certification offered by an employee were not specified in the statute or the regulations.

Barnes' argument appears to be based on Albert v. Runyon, 6 F. Supp. 2d 57, 63-65 (D. Mass. 1998). In that case, the court rejected the employer's explanation that it needed a second health care opinion to independently assess the employee's medical condition. The Albert court observed:

Instead, the employer should determine whether the provided information demonstrates that the diagnosed condition is a serious health condition within the meaning of the FMLA.

The court in Albert observed that the second opinion process "does not contemplate an adversarial investigation into a patient's symptoms and complaints." It also noted that the employer failed to identify any deficiency with the initial certification, and that it failed to support its suspicion regarding the objectivity of the initial health care provider.

Here, the Barnes decision reads a reason to doubt the validity more expansively than does the Albert court. As in Albert, the County did not identify any deficiency with the initial medical certification. Unlike Albert, the record suggests that Barnes' initial health care provider may have failed to follow generally accepted treatment practices by certifying the condition based on a telephone consultation rather than as a result of an in-person physical examination. Critically, the court in Barnes looked to all of the surrounding circumstances, not just the contents of the certification, to determine whether the employer had a reason to doubt the validity of the initial certification.

Note that the court had no problem with the employer setting the appointment for the second health care opinion.

In Knox v. Cessna Aircraft Co., Nos. 08-12827, 08-13046, 2008 U.S. App. LEXIS 24070 (11th Cir. Nov. 24, 2008), the Court affirmed the trial courts decision excluding as unduly confusing and prejudicial a medical certification and physician testimony that Knox required a three-week extension of FMLA leave due to back problems. The doctor admitted during depositions that he completed the certification based solely on representations made by Knox to his nursing assistant over the telephone. The doctor had previously released Knox to return to work after conducting medical tests, including a CT scan. The doctor conceded that he could not state "to a reasonable degree of medical certainty" that Knox had a "serious medical condition that required [Knox] to be absent from work." The Eleventh Circuit agreed that the doctor's testimony was not reliable because he did not have personal knowledge to certify that Knox had a serious health condition, particularly where Knox's self-diagnosis conflicted with the available medical evidence.

Comment: To be valid, a medical certification of an FMLA-covered serious health condition must be the product of a reasonable medical assessment, including tests and examination. A medical certification based on an employee's phoned-in self-serving self-diagnosis will not support an employee's request for FMLA leave.

Until his termination for escalating attendance failures, Danny Williams was a medical support assistant with the U.S. Army and member of the AFGE bargaining unit. Prior to his removal, the Army required Williams to furnish acceptable medical certificate for each sick leave absence. He failed to support subsequent absences with the requisite medical documentation. He incurred absences without explanation. He offered a variety of excuses for other absences, including VA appointments, bronchitis, oversleeping, lacking transportation, and EAP attendance (which he did not in fact attend). Seeing no improvement despite progressive discipline, the Army proposed Williams' removal.

The AFGE grieved the removal. The Union argued that the removal was defective as the AWOL used to support Williams removal should have been classified as FMLA leave. The arbitrator sustained the removal without specifically addressing the Union's FMLA argument. The Union petitioned the Federal Circuit to review the arbitrator's decision.

The Federal Circuit found irrelevant the arbitrator's failure to address the FMLA claim because of Williams' failure to perfect his right to FMLA leave. Citing the notice and medical certification requirements governing civil service employees in 5 CFR Part 630, the Court determined that Williams had not timely invoked his right to FMLA coverage, and that he was prohibited from doing so retroactively. In the absence of reversible error, the Court affirmed the arbitrator's decision.

Comment: The Army and the Court applied the wrong FMLA standard. As a civilian employee of the Army, Williams was covered by Title I of the FMLA (DOL regulations), not Title II (OPM regulations). The DOL regulations define a covered employee (29 CFR 825.800)to include:

As a civilian in the military departments (as defined in section 102 of Title 5, United States Code).

Section 102 of Title 5 defines the military departments as the Army, Navy, and Air Force.

It is unclear whether the Court would have reached the same result had it applied the Title I FMLA regulations. On the one hand, it is unclear from the record whether Williams notified the Army that he needed FMLA leave. Certainly, lack of transportation is not covered by the FMLA. On the other hand, it is a question of fact whether oversleeping, bronchitis, VA appointments, and EAP attendance should have alerted the Army that Williams may have a serious health condition within the meaning of the FMLA sufficient to shift the burden of inquiry to the Army. Employees do not have to request FMLA by name, or even request leave at all. Rather, courts interpreting Title I have held that an employer must determine whether an employee is requesting leave covered by the FMLA based on all of the surrounding circumstances, including the employee's conduct. The MSPB has applied the Title I employee notice standard.

Under Title I, the Army may have been able to terminate Williams for failure to follow establish leave reporting procedures even if the the leave was covered by the FMLA.

I have tried in vain to get the military to explain to me why it applies Title II and not Title I to its civilian employees given the explicit coverage of military civilians in Title I.